No Crystal Ball for Tomorrow

Programming note: When the year-end orders come down tomorrow morning, I’ll be giving a presentation at the Civil Trial CLE in Dallas. I’ll post about them when I can.

In the lead up to tomorrow’s orders, I was tempted to write a post that covered some of the Court’s longest-pending petitions (presumed to be on the “submarine docket”), as well as some of its cases argued and submitted in previous terms. Like others, I am expecting the Court to issue a significant number of opinions. But I didn’t want to write a post that sounded like I was trying to predict tomorrow’s orders.

Instead, here are a few thoughts about the statistics about the Court that may dominate the Fall campaign.

Mark Twain understood the essence of statistics at least as well as my professors did. What you choose to measure is far more important than the measurement you get. (As always, Twain said it better.)

When people have criticized the Court’s handling of its docket, that criticism has highlighted the age of the cases the Court has actually decided, but not those still pending on the docket. What does that mean? Texas Watch took a set of recently issued opinions and worked backwards to determine how long those cases had been pending. That methodology creates a strange incentive — it would penalize the Court for deciding its oldest cases (which raise the average time) and reward it for deciding its newest (which lower the average time), which is not the behavior that those critics profess to seek.

The official Office of Court Administration statistics, by contrast, track the total number of petitions carried from year to year, including the number of submitted cases (i.e., those that have been heard at oral argument but not yet decided).

What incentives does that measurement give the Court? The key is the Court’s “submarine docket,” in which the Court never formally grants argument but instead holds the case to see if the Justices can agree on an opinion. The OCA statistics don’t penalize the Court for carrying those cases over year to year because those petitions look just like every other petition on the docket. By contrast, the OCA statistics do penalize the argued cases for being carried year to year.

A Court that was just trying to pad its stats at the end of the fiscal year would therefore issue opinions in as many argued cases as it could, placing emphasis where possible on recent cases rather than very old ones.

The Court, one hopes, is much less obsessed by its own statistics than the “watch” groups, judicial campaigns, and the like. But it will still be interesting to see which cases come down, by which Justices, and how the Court’s year-end push affects its statistics going into the fall in this election year.